Citation NR: 9610212
Decision Date: 04/18/96 Archive Date: 04/25/96
DOCKET NO. 91-38 718 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to restoration of a 10 percent rating for
bilateral varicose veins.
2. Entitlement to an increased (compensable) rating for
hiatal hernia.
3. Entitlement to an increased rating for headaches,
currently rated as 10 percent disabling.
4. Entitlement to an increased rating for arthritis of the
cervical spine, currently rated as 10 percent disabling.
5. Entitlement to an increased (compensable) rating for
right knee disability.
6. Entitlement to an increased rating for left knee
disability, currently rated as 30 percent disabling.
7. Entitlement to a total rating based on unemployability
due to service-connected disabilities.
8. Entitlement to service connection for right hip
disability secondary to left knee disability.
REPRESENTATION
Appellant represented by: Fleet Reserve Association
ATTORNEY FOR THE BOARD
Nancy S. Kettelle, Counsel
INTRODUCTION
The veteran served on active duty from August 1960 to August
1964, from July 1965 to April 1971 and from March 1978 to
January 1989.
This matter came to the Board of Veterans’ Appeals (Board) on
appeal from rating decisions of the Department of Veterans
Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
The case was remanded to the RO by the Board in January 1992
and March 1993. In a May 1995 letter to the veteran’s
representative, the Board explained that the veteran’s appeal
had been handled previously by a former Board employee who
might have tampered with records or correspondence in the
veteran’s claims file. The Board outlined alternative
actions available to the veteran and requested that the
representative respond within 90 days of the Board’s letter.
No response to that letter has been received by the Board.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his bilateral varicose veins cause
him a lot of pain and discomfort thereby arguing that the
previously assigned 10 percent rating should be restored. He
contends that a compensable rating for his hiatal hernia
should be awarded because he experiences pressure in his
stomach and chest for which he must take antacids for relief
and although he has elevated the head of his bed, his
symptoms interfere with his sleep. The veteran reports that
he has headaches that last for several days at a time. He
further states that two to three times a month he has very
severe headaches with nausea, and those headaches leave him
feeling completely exhausted.
The veteran contends that the arthritis of his cervical spine
warrants a higher rating because his neck motion is limited
and painful and he experiences numbness and tingling in his
arms. The veteran contends that pain in his right knee at
times becomes so severe that it contributes to the difficulty
he has with walking. He contends that his left knee problems
continue to worsen. He states that because of his left knee
disability he cannot walk without the use of a cane or
crutches and that because of pain and stiffness he cannot
stand, sit or stay in any one position for more than 15 or 20
minutes at a time. The veteran contends that because of his
service-connected disabilities, particularly his left knee
disability, he lost his job and has been unable to find any
employer who will risk hiring him given his physical
problems.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against restoration of a 10 percent rating for
bilateral varicose veins. It is, however, the decision of
the Board that the evidence supports a 10 percent rating for
the veteran’s hiatal hernia and a 30 percent rating for the
veteran’s service-connected headaches. Further, the evidence
supports a 20 percent rating for the veteran’s cervical spine
disability based on limitation of motion with a separate
rating of 20 percent for the cervical spine disability based
on nerve impairment. It is also the decision of the Board
that a 10 percent rating is warranted for the veteran’s right
knee disability, but that the preponderance of the evidence
is against a rating in excess of 30 percent for the left knee
disability. Finally, it is the decision of the Board that
the evidence supports a total rating based on unemployability
due to service-connected disabilities.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the issues decided herein has been obtained.
2. Findings at the April 1993 VA examination for diseases of
the arteries and veins compared to those at an April 1992 VA
examination indicated improvement in the veteran’s bilateral
varicose veins with the later examination showing only very
small superficial varicosities in the ankle areas.
3. The veteran’s hiatal hernia causes recurrent epigastric
pain and gastroesophageal reflux.
4. The veteran’s headaches are manifested by temporal pain
on a weekly basis with severe episodes once or twice a month.
5. The veteran’s cervical spine disability is manifested
primarily by limitation of motion of the cervical spine with
neck pain occasionally radiating into the right upper
extremity with evidence of limited sensory impairment; the
sensory impairment is analogous to mild incomplete paralysis
involving the upper radicular nerve group, and recurrent
episodes of neck pain cause moderate limitation of motion of
the cervical spine.
6. The veteran’s right knee disability is manifested
primarily by minimal degenerative changes with slight
limitation of motion and pain.
7. The veteran’s left knee disability is manifested
primarily by moderate degenerative changes with some
limitation of motion, mild instability, swelling and marked
tenderness.
8. No unusual or exceptional disability factors have been
shown.
9. The veteran has reported that he completed two years of
technical college and a correspondence course for
electricians; he last worked in January 1991 as an
electrician.
10. The veteran’s service-connected disabilities are of such
severity as to preclude him from securing and maintaining any
form of substantially gainful employment consistent with his
education and work experience.
CONCLUSIONS OF LAW
1. The criteria for restoration of a 10 percent rating for
bilateral varicose veins have not been met. 38 U.S.C.A.
§ 1155 (West 1991); 38 C.F.R. §§ 3.344(c), 4.104, Diagnostic
Code 7120 (1995).
2. The criteria for a 10 percent rating for hiatal hernia
have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
§§ 3.321(b)(1), 4.114, Diagnostic Code 7346 (1995).
3. The criteria for a 30 percent rating for headaches have
been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
§§ 3.321(b)(1), 4.124a, Diagnostic Code 8100 (1995).
4. The criteria for separate ratings of 20 percent each for
the components of the veteran’s cervical spine disability
have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
§§ 3.321(b)(1), 4.71a, Diagnostic Code 5290, 4.124a,
Diagnostic Code 8510 (1995).
5. The criteria for a 10 percent rating for right knee
disability have been met. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. §§ 3.321(b)(1), 4.71a, Diagnostic Code 5003 (1995).
6. The criteria for a rating in excess of 30 percent for
left knee disability have not been met. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.71a, Diagnostic Code
5257 (1995).
7. A total rating based on unemployability due to service-
connected disabilities is warranted. 38 C.F.R. §§ 3.340,
3.341, 4.16 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board notes that the veteran’s claims are
well-grounded within the meaning of 38 U.S.C.A. § 5107(a)
(West 1991), in that they are plausible. Further, the Board
is satisfied that all relevant facts have been properly
developed and that no further assistance to the veteran is
required to comply with 38 U.S.C.A. § 5107(a).
In accordance with 38 C.F.R. § 4.1 and § 4.2 (1995) and
Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has
reviewed the service medical records and all other evidence
of record pertaining to the history of the veteran’s service-
connected disabilities for which he is seeking rating
restoration or increased ratings. The Board has found
nothing in the historical record which would lead to the
conclusion that the current evidence of record is not
adequate for rating purposes. Moreover, the Board is of the
opinion that this case presents no evidentiary considerations
which would warrant an exposition of remote clinical
histories and findings pertaining to those disabilities.
Briefly, as was noted in the Introduction, the veteran’s last
period of service ended in January 1989. The veteran filed a
VA compensation claim in February 1989, and following review
of the results of a VA examination and service medical
records, the RO granted service connection for the following:
bilateral varicose veins, rated as noncompensably disabling;
hiatal hernia, rated as noncompensably disabling; headaches,
rated as 10 percent disabling; arthritis of the cervical
spine, rated as noncompensably disabling; degenerative
changes of the right knee, rated as noncompensably disabling;
post-operative degenerative changes of the left knee, rated
as 10 percent disabling; and status post carpal tunnel
release, right wrist, rated noncompensably disabling. After
an October 1990 VA examination, the RO continued the 10
percent ratings for the veteran’s left knee disability and
headaches.
With respect to the veteran’s varicose veins, the initial
noncompensable rating was assigned following an April 1989 VA
examination at which the examiner had found very small,
asymptomatic, spider veins about the ankles and the lower
third of each leg. The physician stated that theses were not
considered to be clinically significant. At an April 1992 VA
examination the physician noted spider varices over a 10 by 8
centimeter area near the left ankle with a 2 by 1½ by ½
centimeter slightly tender nodule over the saphenous vein
area near the medial malleolus suggestive of an old
thrombosis of a vein. Diagnoses included spider type
varicose veins, left lower leg. In a June 1992 rating
decision, the RO granted an increased rating, to 10 percent,
for the veteran’s service-connected varicose veins.
At a May 1993 VA examination for diseases of the arteries and
veins, the physician stated that the veteran did not describe
any specific symptoms related to his varicose veins and noted
that the veteran had no history of leg ulceration or of any
symptoms of claudication. On examination of the lower
extremities, the physician found very small mild superficial
varicosities in the ankle areas. The impression was mild
superficial varicosities. The physician stated the it was
more of an esthetic problem than a debilitating one and
should not limit the veteran in any way.
Based on the results of the May 1993 examination, the RO
proposed reduction of the rating for the veteran’s varicose
veins, and implemented that proposal in a March 1994 rating
decision. The veteran has disagreed with the reduction
arguing that his varicose veins cause him a lot of pain and
discomfort. In reviewing the veteran’s appeal, the Board
notes that the results of the May 1993 VA examination show
that there has been improvement in the veteran’s bilateral
varicose veins. Specifically, there was no indication of the
presence of the tender nodule over the left saphenous vein
found at the April 1992 examination, and only very small mild
superficial varicosities in the ankle areas were found.
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule), found in 38 C.F.R. Part 4 (1995). The Board
attempts to determine the extent to which the veteran’s
service-connected disability adversely affects his ability to
function under the ordinary conditions of daily life, and the
assigned rating is based, as far as practicable, upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1995).
Under the Rating Schedule, a noncompensable rating is
warranted for mild varicose veins or for varicose veins with
no symptoms. 38 C.F.R. § 4.104, Diagnostic Code 7120. A 10
percent rating requires moderate bilateral or unilateral
varicose veins with varicosities of the superficial veins
below the knees with symptoms of pain or cramping on
exertion. Id. In this case, the Board finds that the
preponderance of the evidence is against restoration of the
10 percent rating for the veteran’s bilateral varicose veins.
The most recent examination demonstrated improvement in the
veteran’s varicose veins and showed only very small mild
superficial varicosities in the ankle area. The physician
specifically noted that the veteran did not describe any
specific symptoms related to his varicose veins and concluded
that the varicosities should not limit the veteran in any
way. As the examination results disclose improvement, the
rating reduction is warranted. See 38 C.F.R. § 3.344(c). It
was after the May 1993 VA examination that the veteran
asserted that his varicose veins cause him pain and
discomfort. However, VA outpatient records show no
complaints or treatment related to the veteran’s varicose
veins either before or after May 1993, and the veteran has
not indicated that he has sought treatment elsewhere. Under
the circumstances, there is no basis for restoration of a 10
percent rating for the veteran’s varicose veins.
The veteran’s hiatal hernia was discovered on X-rays in
service in 1986, and a trial of antacids was recommended at
that time. At his April 1989 VA examination, the veteran
reported he had never had any symptoms except high chest pain
and stated that he was taking no medication for the hiatal
hernia. There was no abdominal tenderness on examination.
As was noted earlier, in its August 1989 rating decision, the
RO granted service connection for hiatal hernia and assigned
a noncompensable rating. Following the April 1992 VA
examination at which no complaints or findings were reported
related to the veteran’s hiatal hernia, the RO, in its June
1992 rating decision, continued the noncompensable rating.
In his statement received in August 1992, the veteran
reported that he had been told that there was nothing that
could be done for his hiatal hernia other than to take
antacids for the pain. He stated that he had had spells
where he had pressure in his chest and had vomited. He said
the antacids sometimes did not help the pain and he had to
sleep with the upper part of his body elevated to relieve his
symptoms.
At an April 1993 VA examination, the veteran complained of
epigastric pain occurring two to three times a week with
symptoms of gastroesophageal reflux. He reported that he
took Mylanta for relief from his symptoms. On examination,
the physician noted mild tenderness in the epigastric region
and diagnosed the veteran as having hiatal hernia with
gastroesophageal reflux.
Under the Rating Schedule, a 10 percent rating is warranted
for a hiatal hernia with two or more symptoms required for a
30 percent rating, but of lesser severity than is required
for that rating. A 30 percent rating requires persistently
recurrent epigastric distress with dysphagia, pyrosis, and
regurgitation accompanied by substernal or arm or shoulder
pain, all of which are productive of a considerable
impairment of health. 38 C.F.R. § 4.114, Diagnostic Code
7346. Here, at the most recent examination, there were
complaints of recurrent epigastric pain and symptoms of
gastroesophageal reflux. The physician diagnosed the veteran
as having gastroesophageal reflux and this, together with the
mild tenderness in the epigastric region found at the
examination, meets the requirements for a 10 percent rating
for hiatal hernia. Although the veteran has reported that
his pain and reflux symptoms occur two to three times a week,
at the examination he indicated that he obtained relief with
Mylanta, and the physician noted that the veteran’s weight
had remained constant and that he was not known to be anemic.
Therefore, the disability does not more nearly approximate
the criteria for a 30 percent rating.
With respect the increased rating claim for headaches, the
veteran’s service medical records show that he received
continuing treatment for headaches beginning in the mid-
1980s. At his April 1989 VA examination, the vetera reported
he had headache attacks about three times a week and said
they lasted 6 to 7 hours with some relief by taking two
Tylenol tablets. He said he occasionally had scotoma, but no
other visual problems during the attacks. There was no
history of nausea or vomiting. The reported diagnosis was
history of right-sided migraine headaches. In its August
1989 rating decision, the RO granted service connection for
headaches and assigned a 10 percent rating effective from the
day following the veteran’s separation from service. At an
October 1990 VA examination, the veteran reported he had
headaches a couple of times a month. He reported no aura,
nausea or visual complaints. He said when he had a headache
he generally took a Tylenol or some other analgesic and
continued working. After examination, the diagnosis was
vascular type headaches. An electroencephalogram was within
normal limits. The RO continued the 10 percent rating for
headaches in its May 1991 rating decision.
At the April 1992 VA examination, the veteran reported that
he had headaches three to four times a week and said they
were usually relieved after a short period by Motrin or
Tylenol. After examination, the physician diagnosed the
veteran as having migraine headaches. In its June 1992
rating decision, the RO continued the 10 percent rating, and
the veteran appealed. In his Notice of Disagreement received
in August 1992 the veteran stated that he had severe
headaches at least once a week lasting for one to four days.
He said the headaches were normally accompanied by nausea and
left him completely exhausted with very severe headaches
occurring twice or three times a month.
Clinical records and correspondence from private physicians
show that the veteran was seen for eye examinations in August
1992 and gave a three-week history of a right temporal and
frontal headache. He reported that the headaches caused
nausea and had occurred once each week, and he estimated them
to be a 7 on a scale of 10 for pain. He also stated that
associated with the recent headaches was an area of
superficial tenderness in the right temporal area. One of
the ophthalmologists recommended the veteran be seen by a
neurologist for his headache problem which sounded to that
physician somewhat like a vascular or tension headache.
VA outpatient records show that in September 1992 the veteran
reported that his last severe headache episode had been about
4 weeks earlier and there was residual persistent dull right
temple aching discomfort. He said that he had headaches for
1 to 3 days approximately every week, and about once a month
had a severe headache accompanied by nausea and vomiting. He
denied aura, visual symptoms or any other pattern. When seen
in a VA clinic in October 1992, the veteran reported that he
had headaches which came on with nausea and vomiting and
pounding right temple and right occipital pain. In another
visit later that month, he reported his headaches were fairly
constant even with medication.
At a January 1993 VA neurology consultation, the veteran
reported that he had had pounding headaches lasting from 4 to
6 hours for which Cafergot had been helpful. He stated that
the frequency of his throbbing headaches was once or twice a
month. The veteran also reported that he had another type of
headache which he described as constant pain in the temporal
area. After examination, in which he found some mild
temporal pain on palpation, the physician’s impression was
migraine headache, variant, and chronic tension headaches.
At an April 1993 VA neurology examination, the physician’s
diagnoses included headaches, most likely secondary to the
veteran’s cervical disease. In a November 1993 VA supplement
to an outpatient progress note, it was noted that cervical
spine traction had been helping the veteran’s neck and
basilar skull pain but had not helped his temporal headaches.
The veteran’s headaches have been rated under the diagnostic
code for migraines. Under the Rating Schedule, a 10 percent
rating is warranted for migraine with characteristic
prostrating attacks averaging one in two months over the last
several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. A
30 percent rating requires characteristic prostrating attacks
occurring on an average of once a month over the last several
months. Id. A 50 percent rating requires very frequent
completely prostrating and prolonged attacks productive of
severe economic inadaptability. Id.
Review of the clinical records and examination reports
concerning the veteran’s service-connected headaches
indicates that approximately once or twice a month the
veteran suffers from severe headaches that are accompanied by
nausea and vomiting. In addition, he has suffered from dull,
more constant headaches which have apparently been greatly
relieved, if not resolved, by physical therapy. In the
Board’s opinion, the consistent description, for clinical and
examination purposes, of the accompaniment of severe headache
pain with nausea and vomiting is essentially equivalent to
prostrating attacks with sufficient frequency to warrant a 30
percent rating. However, a 50 percent rating is not
warranted as the evidence found in the clinical and
examination reports does not substantiate the veteran’s
assertion in his March 1994 VA Form 9, that he becomes so
sick from his headaches that about once a week he must go to
bed for a day. The veteran’s statement alone is not
sufficient to establish that his headaches more nearly
approximate the very frequent, completely prostrating attacks
productive of severe economic inadaptability that are
required for the next higher rating. The Board is thus
obliged to award the 30 percent rating for the veteran’s
service-connected headaches. See 38 C.F.R. § 4.7 (1995).
Service medical records show that in August 1985 the veteran
complained of pain in the cervical area in conjunction with
his headaches and that X-rays in April 1986 showed minimal
degenerative changes of the cervical spine. At the April
1989 VA examination, there was normal range of motion of the
cervical spine. In its August 1989 rating decision, the RO
granted service connection for arthritis of the cervical
spine and assigned a noncompensable rating.
At the April 1992 VA examination, the veteran complained of
pain between his shoulders and in the low neck. The physician
stated that the veteran’s neck was kyphotic at about 30
degrees and on flexion extended down 30 additional degrees,
to approximately 60 degrees, with complaints of discomfort.
The veteran said he was sometimes unable to turn his head
because of neck pain, and the physician noted that the
veteran was unable to completely straighten his neck without
discomfort. In its June 1992 rating decision, the RO granted
an increased rating of 10 percent, for the veteran’s
arthritis of the cervical spine disability, and the veteran
appealed.
During evaluation for headaches at a VA outpatient clinic in
September 1992, the physician noted tenderness to pressure
over C6-C7 and neck pain, particularly with lateral bending.
When seen in a VA clinic in October 1992, the veteran
complained of diffuse arthralgia of the cervical spine and
shoulders. On examination, the physician described range of
motion of the cervical spine as good, but with cautious
rotation.
At an April 1993 VA orthopedic examination, which included
examination for residuals of right wrist carpal tunnel
release, the veteran stated he had pain at the neck radiating
to the right shoulder, elbow, wrist and to the middle three
fingers. On examination, of the right upper extremity, there
was a glove and stocking distribution of decreased sensation
at the level of the wrist. Tinel tests at the median nerve
at the wrist caused mild local tenderness, and similar
findings were present at the elbow and wrist for the ulnar
nerve. The physician stated that the veteran’s pain was more
likely related to his cervical spine pathology than to his
history of right carpal tunnel syndrome.
At an April 1993 VA neurology examination, the veteran gave a
history of headaches and neck pain with radiation,
particularly into his right arm. He also reported somewhat
episodic numbness and tingling in his right arm. Sensory
examination revealed decreased sensation along the radial
aspect of the right arm involving all fingers except the
small finger, and less so, the ring finger. The veteran gave
a history of significant neck pain, predominantly with
motion. The physician found neck range of motion to be
limited with positive Spurling’s maneuver on the right.
Deltoid strength was normal, bilaterally; biceps strength was
4+/5 on the right and 5/5 on the left; triceps strength was
4/5 on the right and 5/5 on the left; and grip strength was
4/5 on the right and 5/5 on the left. X-rays reportedly
revealed spondylitic disease predominantly at C5-C6 with an
osteophytic spur at that level. The diagnoses included
spondylosis, and the physician stated that this appeared to
be the primary etiology of the veteran’s neck and headaches
and recommended a magnetic resonance imaging (MRI) study of
the cervical spine be obtained in part to evaluate possible
neural compression. A May 1993 VA MRI of the cervical spine
showed a central posterior osteophyte at C5-C6 which was
impinging on the thecal sac.
VA physical therapy records show that the veteran was
referred for therapy in October 1993 and at that time he
complained of a burning sensation and pain in the cervical
and thoracic spine area. The area was tender to palpation,
and cervical mobility was moderately limited in all planes.
The veteran stated he experienced occasional upper extremity
numbness and tingling, worse on the right. The veteran
underwent 12 sessions of cervical traction with good results
in resolving the burning sensations and was issued a home
cervical traction unit. VA outpatient records show that in
early 1994 the veteran reported that his neck was about the
same.
Review of the medical evidence outlined above shows that the
veteran’s cervical spine disability is manifested primarily
by limitation of motion of the cervical spine and mild
chronic neck pain occasionally radiating into the right upper
extremity; recurrent episodes of neck pain cause moderate
limitation of motion of the cervical spine. The evidence
shows that the veteran’s cervical spine disability includes a
neurological component manifested by occasional pain and
paresthesia predominantly involving the right arm and
radiating to the middle three fingers.
Under the Rating Schedule, the veteran’s cervical spine
disability based on limitation of motion is appropriately
rated under Diagnostic Code 5290. Under that code, slight
limitation of motion of the cervical segment of the spine
warrants a 10 percent rating and moderate limitation of
motion warrants a 20 percent rating while a 30 percent rating
requires severe limitation of motion. 38 C.F.R. § 4.71a,
Diagnostic Code 5290.
The medical evidence shows that the veteran’s cervical spine
disability is dominated by mild chronic neck pain which
limits neck motion. Although the veteran has stated that he
sometimes cannot turn his head because of neck pain,
examination has shown that he is able to move the cervical
spine in all planes. The examiners have, however, found
limitation of cervical spine motion, and when cervical spine
motion was last addressed in October 1993, the examiner
described cervical mobility as moderately limited in all
planes. Based on these findings, an increased rating, to 20
percent, may be assigned for the veteran’s cervical spine
disability due to limitation of motion. There is, however,
no indication that motion of the cervical spine is limited to
the extent that it may be reasonably be described as severe
which would be required for the next higher rating under
Diagnostic Code 5290.
Moderate limitation of motion of the veteran’s cervical spine
describes functional loss associated with his service-
connected arthritis of the cervical spine, and VA examiners
have found that functional loss to be due to pain. In
consideration of 38 C.F.R. § 4.14 (1995) (avoidance of
pyramiding), in rating the veteran’s cervical spine
disability based on limitation of motion it would not be
appropriate to apply, in addition to Diagnostic Code 5290,
the provisions of 38 C.F.R. § 4.40 (1995) which specifically
refer to disability due to impaired movement in terms of
excursion, strength, speed, coordination and endurance and
provide for a rating to be based on functional loss due to
pain. Neither the VA compensation examination reports nor
outpatient records have shown weakness, fatigability or
incoordination of the cervical spine which are factors, in
addition to pain on movement, under which 38 C.F.R. § 4.45
(1995) might provide for an increased rating. Thus, based on
an overall review of the record, the Board does not find
functional impairment associated with the veteran’s service-
connected spine disability which would warrant a higher
rating based on limitation of motion than the 20 percent
assigned under Diagnostic Code 5290.
In addition to neck pain with limitation of motion of the
cervical spine, clinical examiners have noted associated
complaints of radiating pain, numbness and tingling
predominantly in the right upper extremity. Findings have
included sensory impairment predominantly involving the right
arm and radiating to the fingers. The Board notes that
38 C.F.R. § 4.14, which cautions against the evaluation of
the same disability under various diagnoses, does not
prohibit the assignment of separate evaluations in cases such
as this where distinct functions, here mobility of the neck
versus sensation in an upper extremity, have been affected.
The Rating Schedule addresses disability resulting from
complete, or various degrees of incomplete, paralysis of the
upper radicular nerve group (fifth and sixth cervicals), with
the schedular rating dependent on whether the major or minor
upper extremity is involved. 38 C.F.R. § 4.124a, Diagnostic
Code 8510. At the April 1989 VA examination, it was noted
that the veteran is right-handed. The neurological component
of his cervical spine disability thus involves his major
upper extremity. A 70 percent rating is warranted for
complete paralysis of the upper radicular nerve group, fifth
and sixth cervicals, where all shoulder and elbow movements
are lost or severely affected. Id.
The term “incomplete paralysis” indicates a degree of lost or
impaired function substantially less than that which is
described in the criteria for an evaluation for complete
paralysis of the peripheral nerve in question, whether due to
varied level of the nerve lesion or to partial regeneration.
38 C.F.R. § 4.124a (Note related to injuries of the
peripheral nerves). When the involvement is wholly sensory,
the rating should be for the mild, or at most, the moderate
degree of disability. Id. A 20 percent rating is warranted
for mild incomplete paralysis involving the upper radicular
nerve group; a 40 percent rating requires moderate incomplete
paralysis; and a 60 percent rating requires severe incomplete
paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8510.
Although the veteran has complained of pain radiating into
his right shoulder and arm, review of the evidence gives no
indication that the cervical spine disability involves
complete loss of shoulder and elbow movement or that movement
of the shoulder or elbow has been severely affected. With
these observations, the Board finds that the criteria for
complete nerve paralysis involving the upper radicular group
are not met. The question becomes the degree of incomplete
paralysis: mild, moderate or severe.
The neurological component of the veteran’s cervical spine
disability is manifested primarily by slight reduction of
sensation over the right upper extremity. The impairment is
almost wholly sensory, and in the Board’s view can be found
to be not more than mild. Although the veteran complains of
occasional radiating pain associated with the numbness and
tingling and slight weakness has been found in the right
upper extremity, reflexes were found to be equal and
symmetrical to those on the left. Under these circumstances,
the Board cannot find that the veteran’s disability picture
more nearly approximates moderate versus mild impairment of
the upper radicular nerve group, which, using the provisions
of 38 C.F.R. § 4.7, would allow assignment of a 40 percent
rating. The Board is, therefore, obliged to assign the 20
percent rating for mild incomplete paralysis of the upper
radicular nerve group (fifth and sixth cervicals).
The remaining issues to be decided at this time are
entitlement to increased ratings for right and left knee
disabilities and entitlement to a total rating based on
unemployability due to service-connected disabilities. With
regard to the veteran’s knees, service medical records show
left knee complaints starting in 1967 and later records show
complaints of recurrent locking and effusion. The impression
was possible torn meniscus. In 1973 and 1974, between his
second and third periods of service, the veteran underwent
medial and lateral meniscectomies on the left knee. Service
medical records show that in the early 1980s the veteran
again complained of left knee pain and of bilateral knee pain
in the late 1980s. The radiologist’s impression following
May 1988 X-rays was mild to moderate degenerative changes of
the left knee and early to minimal degenerative changes of
the right knee.
At the April 1989 VA examination, the veteran reported that
his left knee hurt worse than the right; the left knee lacked
10 degrees of full flexion, and there was full range of
motion of the right knee. In its August 1989 rating
decision, the RO granted service connection for postoperative
degenerative changes of the left knee and assigned a 10
percent rating. It also granted service connection for
degenerative changes of the right knee and assigned a
noncompensable rating. Following another VA examination in
October 1990, the RO continued the same ratings for the
veteran’s service connected knee disabilities.
In February 1991, the RO received the veteran’s claim for an
increased rating for his left knee disability and his
statement that he had not been able to work because of
problems with his knee. VA outpatient records dated from
November 1990 to March 1991 show that the veteran was seen
with complaints of left knee swelling and pain. Fluid was
aspirated from the knee and medication, Epsom salt soaks,
crutches, a knee brace and physical therapy were prescribed.
At an orthopedic consultation in February 1991, the physician
noted that as a result of having used the knee brace
consistently over the past month, motion of the left knee was
limited to extension to 10 degrees and flexion to 100
degrees. He also found anterior cruciate instability,
lateral collateral ligament instability, retropatellar
crepitus and knee effusion, but no warmth. He recommended
physical therapy, continued medication and weight loss and
stated that the veteran could gradually discard the knee
brace as exercises strengthened the knee and that he could
return to work as knee symptoms and exercise program became
effective. In a March 1991 clinical record, it was noted
that in about six weeks a decision would be made regarding
knee replacement, and it was stated that the veteran would
return in two months and was completely unable to work.
In a May 1991 rating decision, the RO granted an increased
rating, from 10 percent to 30 percent, for the veteran’s left
knee disability. The veteran disagreed and subsequently
perfected his appeal as to that issue. He submitted a change
of status form and a letter from the City of Atlantic Beach,
Florida, in which it was stated that he had been on unpaid
medical leave since early January 1991 and that his
employment would be terminated in April 1991 as his extended
medical leave would be exhausted by that time. VA outpatient
records show that in May 1991 the veteran was seen with
continuing complaints of left knee swelling and pain.
The veteran was seen at a VA orthopedic clinic in August
1991, and it was noted that he had continued physical therapy
and no longer required the brace on his left knee but had not
been able to go back to work. The veteran walked with a
cane. Range of motion of the left knee was from 0 to 120
degrees, crepitus was present and drawer sign was positive.
Range of motion of the right knee was reported as 0 to 160
degrees. The assessment was significant degenerative joint
disease and laxity of the anterior cruciate ligament. The
examiner stated that the veteran did not appear to be a
candidate for arthroplasty at that time. In an addendum, the
orthopedist who had examined the veteran in February 1991
stated that he had seen and examined the veteran and that at
age 50 he was still too young for a total knee replacement.
He said the veteran should be followed yearly and be
considered for operative treatment in three to five years.
In an August 1991 examination report addressed to the Florida
Office of Disability Determination, Edward P. Schelonka,
M.D., noted that the veteran’s chief complaints included left
knee pain, and on examination, the veteran voiced pain on
palpation of the left patella and knee joint. Dr. Schelonka
stated that he observed the veteran’s gait was antalgic.
At the April 1992 VA examination, the veteran complained that
his left knee was unstable and painful and reported that he
used crutches most of the time, occasionally using a single
cane. The physician noted that the veteran walked with a
marked limp. The left knee was slightly swollen with
tenderness over each side of the patella. There was marked
crepitation, along with discomfort, on extension and flexion
of the left knee. Diagnoses included degenerative arthritis
of the left knee, arthritis of the cervical spine and
migraine headaches. The physician remarked that use of a
cane or crutches was necessary and that the veteran was
unable to work because of his knee and other problems.
In a June 1992 rating decision, the RO continued the 30
percent rating for the left knee disability, continued the
noncompensable rating for the right knee disability, and
denied a total rating based on unemployability due to
service-connected disabilities. In July 1992, the RO issued
a Supplemental Statement of the Case including the left knee
increased rating claim and the total rating claim. In a
letter received at the RO in August 1992, the veteran
perfected his appeal as to his total rating claim and
expressed disagreement with the RO’s determinations
concerning the rating for his right knee.
In a VA outpatient record dated in July 1992, it was noted
that the veteran reported that he had constant left knee pain
which became worse with walking. He reported intermittent
effusion and frequent giving way. He also reported right
knee and hip pain secondary to altered mechanics because of
the left knee.
When seen in a VA clinic in October 1992, the veteran
complained of pain in both knees. On examination, there was
effusion of the left knee with crepitus and instability,
while the hips were negative for abnormal findings and the
right knee was within normal limits. Notes from a VA
orthopedic clinic also show that when seen later in October
1992, there was mild effusion of the left knee and range of
motion was from 0 to 110 degrees with crepitus. It was again
noted that the veteran had been unable to work secondary to
the knee and that he was not a good candidate for a total
knee replacement because of his age. The physician noted
that vocational rehabilitation to modify the veteran’s job
skills was discussed.
VA outpatient records also show that in November 1992 the
veteran complained of right knee pain and reported the knee
would give out if, after sitting for an hour or so, he began
to walk immediately after standing up. On examination, there
was tenderness around the patella, and the physician reported
that X-rays showed a small spur on the patella. The
diagnosis was internal derangement of the right knee.
At an April 1993 VA orthopedic examination, range of motion
of the left knee was from 0 to 115 degrees. There was no
effusion or significant laxity, but there were tenderness at
the medial joint line and marked tenderness on patellar
compression. The physician noted that X-rays showed moderate
degenerative arthritis of all three compartments of the left
knee, worse in the medial compartment. The assessment was
moderate degenerative joint disease, left knee, status post
medial meniscectomy. In an August 1993 VA X-ray report
concerning the right knee, the radiologist stated there was
calcification of the patellar tendon, but there was no
evidence of arthropathy. At an August 1993 VA orthopedic
examination, the veteran complained of right knee pain. On
examination, range of motion was from 0 to 135 degrees, and
there was a positive patellar compression sign. The
orthopedist stated that X-rays revealed very minimal
degenerative changes in the patellofemoral joint. His
assessment was minimal degenerative arthritis, right knee.
VA outpatient records show that in early 1994 the veteran
reported that his knees were about the same. Examination of
the left knee in April 1994 showed range of motion from 0 to
120 degrees, and there was crepitus along with pain over the
medial compartment. X-rays reportedly showed moderate
arthritis of the left knee and minimal arthritis of the right
knee.
The RO has rated the veteran’s knee disabilities under
Diagnostic Code 5257 of the Rating Schedule. 38 C.F.R.
§ 4.71a, Diagnostic Code 5257. This code provides a 10
percent rating for slight impairment of the knee, a 20
percent rating for moderate impairment and a 30 percent
rating for severe impairment of the knee.
In that the degenerative changes found in the left knee
followed left knee surgeries, the RO has also considered
Diagnostic Code 5010 which provides that arthritis due to
trauma, substantiated by X-ray findings, may be rated as
degenerative arthritis. In pertinent part, the diagnostic
code for degenerative arthritis provides that degenerative
arthritis established by X-ray findings will be rated on the
basis of limitation of motion under the appropriate
diagnostic codes. 38 C.F.R. § 4.71a, Diagnostic Code 5003.
When the limitation of motion of the specific joint or joints
involved is noncompensable under the appropriate diagnostic
codes, a rating of 10 percent is for application for each
major joint or group of minor joints affected by limitation
of motion, to be combined, not added, under Diagnostic Code
5003. Id. Limitation of motion must be objectively
confirmed by findings such as swelling, muscle spasm, or
satisfactory evidence of painful motion. Id.
Within the Rating Schedule, Diagnostic Codes 5260 and 5261
concern limitation of motion of the knees. Under Diagnostic
Code 5260, flexion limited to 60 degrees warrants a 0 percent
rating; flexion limited to 45 degrees warrants a 10 percent
rating; a 20 percent rating is provided for flexion limited
to 30 degrees; and a 30 percent rating is provided for
flexion limited to 15 degrees. Under Diagnostic Code 5261, a
0 percent rating is warranted for extension limited to 5
degrees; a 10 percent rating is warranted for extension
limited to 10 degrees; a 20 percent rating is assigned for
extension limited to 15 degrees; and a 30 percent rating is
provided for extension limited to 20 degrees.
As was outlined earlier, VA outpatient records show
complaints including right knee pain, and recent examination
has shown range of motion of the right knee from 0 degrees
extension to 135 degrees flexion. The range of motion does
not meet the criteria for a compensable rating under either
Diagnostic Code 5260 or Diagnostic Code 5261. According to
38 C.F.R. § 4.71, Plate II, normal knee motion is from 0 to
140 degrees. Thus flexion of the right knee to 135 degrees
represents limitation of motion, albeit minimal. This,
together with the veteran’s complaints of pain confirmed by
positive patellar compression sign, indicates that painful
motion has been found warranting a 10 percent rating under
Diagnostic Code 5003. The assignment of the 10 percent
rating is consistent with 38 C.F.R. § 4.59 (1995) which
addresses painful motion. That regulation provides that with
any form of arthritis, painful motion is an important factor
of disability and that it is the intention to recognize
actually painful, unstable, or malaligned joints, due to
healed injury, as entitled to at least the minimum
compensable rating for the joint.
With respect to the veteran’s left knee disability, review of
the medical evidence outlined above shows that the disability
has included limitation of motion with extension limited to
10 degrees and flexion limited to 100 degrees for a time, but
more recently improving to extension to 0 degrees and flexion
to 120 degrees. However, the Board notes that even with
flexion restricted to 100 degrees, limitation of motion in
and of itself would not warrant a compensable rating for the
left knee disability under Diagnostic Code 5260 based on
limitation of flexion and would only warrant a 10 percent
rating based on limitation of extension under Diagnostic Code
5261. A higher rating may be awarded under Diagnostic Code
5257, and overall, the Board is satisfied that the veteran’s
left knee disability, manifested primarily by moderate
degenerative changes with some limitation of motion, mild
instability, swelling and marked tenderness, demonstrates
severe impairment, and that the 30 percent currently assigned
under Diagnostic Code 5257 is appropriate.
The Board notes that under the Rating Schedule there is no
applicable diagnostic code under which a rating higher than
the currently assigned 30 percent rating could be assigned
for the veteran’s left knee disability. However, with the
left knee, as with the other increased rating claims
addressed by the Board in this decision, no unusual or
exceptional disability factors warranting extraschedular
consideration have been presented. 38 C.F.R. § 3.321(b)(1).
Considering the increased ratings awarded by the Board and
with application of the bilateral factor under 38 C.F.R.
§ 4.26 (1995) and the procedures for combining ratings found
in 38 C.F.R. § 4.25 (1995), the veteran meets the minimum
schedular requirements for a total disability rating based on
unemployability due to service-connected disabilities.
38 C.F.R. § 4.16. VA will grant a total rating for
compensation purposes based on unemployability where the
evidence shows that the veteran, by reason of his service-
connected disabilities, is precluded from obtaining or
maintaining substantially gainful employment consistent with
his education and occupational experience. 38 C.F.R. §3.340,
3.341, 4.16.
In evaluating whether the veteran’s service-connected
disabilities preclude substantially gainful employment, the
Board notes that the VA Adjudication Manual, M21-1, Paragraph
50.55(8) defines substantially gainful employment as that
which is ordinarily followed by the nondisabled to earn a
livelihood, with earnings common to the particular occupation
in the community where the veteran resides. This suggests a
living wage. Ferraro v. Derwinski, 1 Vet.App. 326, 332
(1991). The ability to work sporadically or obtain marginal
employment is not substantially gainful employment. Moore v.
Derwinski, 1 Vet.App. 356, 358 (1991).
The record includes VA outpatient records dated from November
1990 to April 1994, and, as outlined earlier, these records
show that the veteran was seen with continuing complaints
primarily involving problems with headaches, neck pain with
radiation and paresthesia in the right upper extremity and
left knee problems including pain, swelling and instability.
Those records show that in 1991 and 1992, in conjunction with
treatment of left knee complaints, VA physicians remarked
that the veteran was unable to work because of his knee
symptoms. Also, at the April 1992 VA examination the
physician stated that the veteran was unable to work because
of his left knee and other problems and further noted that
the veteran had not been able to work since January 1991 and
was not likely to improve in that way.
The veteran has reported that he completed two years of
technical college and a correspondence course for
electricians. He has also reported that he last worked in
January 1991 as an electrician, and the letter he submitted
from the City of Atlantic Beach, Florida, shows that he was
terminated from that employment with expiration of extended
medical leave. In addition, the veteran has reported that he
has attempted to find other work, but that employers will not
hire him because of his physical condition.
In a December 1993 VA counseling record, the counseling
psychologist listed the veteran’s service-connected
disabilities and noted that the veteran experienced headaches
when working in noisy areas and that flashing lights brought
on headaches and nausea. She stated that his left knee
disability interfered with the veteran’s ability to lift,
climb, walk and sit and noted that pain in his neck, right
shoulder, elbow and wrist contributed to an inability to work
in any position that would require physical demand. She
stated that it was determined that in view of the nature of
the veteran’s disabilities and lack of educational skills,
the veteran was unable to maintain gainful employment for
reasons beyond his control. She also stated that because of
his service-connected left knee disability the veteran had
been unable to obtain, maintain and sustain employment for
the past two years. She noted that the veteran was uncertain
as to when a planned total knee replacement would be
scheduled and that she did not believe that the veteran could
be successful in a retraining program until after his
physical condition improved. In this regard, in a letter
dated in May 1994, the veteran reported that he had not yet
had knee replacement surgery. He stated that his physicians
were delaying the procedure as long as possible because of
his age in that an implant was only good for an average of 10
years and could only be done twice. He also said that his
doctors still would not let him work nor would they tell him
when he could go back to work.
Although the veteran has two years of technical college, with
training as an electrician, there is no indication that such
a background provides him with the skills to obtain or retain
a job that could accommodate his inability to lift or to
stand or sit for more than short intervals along with
accommodation of problems associated with his cervical spine
disability and headache symptoms. In light of the
restrictions imposed by the veteran’s service-connected
disabilities, the Board finds that the evidence shows that
they allow no more than marginal employment. Inasmuch as
substantially gainful employment is shown to be precluded by
the veteran’s service-connected disabilities, a total rating
based on unemployability is warranted.
ORDER
Restoration of a 10 percent rating for bilateral varicose
veins is denied.
A 10 percent rating for hiatal hernia is granted, subject to
the applicable criteria governing the payment of monetary
benefits.
A 30 percent rating for headaches is granted subject, to the
applicable criteria governing the payment of monetary
benefits.
A 20 percent rating for cervical spine disability based on
limitation of motion is granted, subject to the applicable
criteria governing the payment of monetary benefits.
A separate 20 percent rating for cervical spine disability
based on incomplete paralysis of the right upper radicular
nerve group (fifth and sixth cervicals) is granted, subject
to the applicable criteria governing the payment of monetary
benefits.
A 10 percent rating for right knee disability is granted,
subject to the applicable criteria governing the payment of
monetary benefits.
Entitlement to an increased rating for left knee disability
is denied.
A total disability rating based on unemployability due to
service-connected disabilities is granted, subject to the
applicable criteria governing the payment of monetary
benefits.
REMAND
Among the issues certified to the Board is entitlement to
service connection for right hip disability secondary to the
veteran’s service-connected left knee disability. At the
April 1993 VA orthopedic examination, the veteran gave a
history of occasional right hip instability and pain which he
associated with the use of a cane necessitated by his left
knee disability. After examination and review of X-rays
which reportedly showed no significant abnormalities of the
right hip, the physician’s assessment included right hip pain
without significant objective signs of degeneration. The
physician stated that the veteran’s hip pain might be
secondary to the strain caused by symptoms from the left
knee. The Board believes that an additional examination and
medical opinion would facilitate its decision on this issue,
and the case will be returned to the RO for this development.
Review of the record shows that in its August 1989 rating
decision, the RO denied service connection for left eye
disability, and the veteran did not appeal this decision. In
his August 1992 statement the veteran discussed his in-
service and post-service visual problems, and it is not clear
whether the veteran is attempting to reopen the claim. This
should be clarified by the RO.
The veteran has submitted an August 1993 VA mental health
clinic consultation report showing that he was referred by
the neurology service. After examination, the impression was
dysthymic disorder secondary to knee pain and headaches.
Also of record is a May 1994 mental clinic progress note. At
that time the veteran described conditions as essentially
unchanged, and he was diagnosed as having dysthymic disorder
secondary to multiple medical problems. These records raise
the issue of entitlement to service connection for
psychiatric disability on a secondary basis. This matter
will be referred to the RO for development and adjudication.
Accordingly, the case is REMANDED to the RO for the following
actions:
1. The RO should obtain and associate
with the claims file outpatient and
hospital records for the veteran from VA
medical facilities in Gainesville and
Jacksonville, Florida, dated from
January 1994 to the present.
2. The RO should contact the veteran
and request that he clarify whether he
is attempting to reopen a claim of
entitlement to service connection for
left eye disability. The veteran should
also be requested to identify the names,
addresses and approximate dates of
treatment for health care providers,
other than VA, from whom he has received
treatment for right hip disability or
psychiatric disability at any time since
service. With any necessary
authorization from the veteran, the RO
should attempt to obtain and associate
with the claims file copies of medical
records identified by the veteran which
have not been secured previously.
3. Then, the RO should arrange for VA
examination of the veteran by a board
certified orthopedist, if available, to
determine the nature and extent of any
right hip disability. All indicated
studies, including X-rays, should be
performed. The physician should be
requested to review the material in the
veteran’s claims file along with the
examination results and provide an
opinion, with complete rationale, as to
whether it is at least as likely as not
that the veteran’s service-connected
left knee disability caused or
chronically worsened any right hip
disability. The claims file must be
made available to the physician prior to
the examination.
4. The RO should also arrange for VA
psychiatric examination of the veteran
to determine the nature and extent of
any current psychiatric disability. All
indicated studies should be performed.
The psychiatrist should be requested to
review the material in the veteran’s
claims file along with the examination
results and provide an opinion, with
complete rationale, as to whether any
psychiatric disability was caused or
chronically worsened by the any one or
some combination of the veteran’s
service-connected disabilities. The
claims file must be made available to
the psychiatrist prior to the
examination.
5. Thereafter, the RO should review the
claims file and ensure that all
requested development actions, including
medical examinations and opinions, have
been conducted and completed in full.
Then, the RO should undertake any other
indicated development. If the veteran
has stated that he is attempting to
reopen his claim for service connection
for left eye disability, the RO should
adjudicate the issue of whether new and
material evidence has been submitted to
reopen the claim for service connection
for left eye disability. In addition,
the RO should readjudicate entitlement
to service connection for right hip
disability secondary to left knee
disability and should adjudicate
entitlement to service connection for
psychiatric disability on a secondary
basis.
6. If the benefit sought on appeal is
not granted to the veteran’s
satisfaction or if a timely Notice of
Disagreement is received with respect to
any other matter, the RO should issue a
Supplemental Statement of the Case for
all issues in appellate status and
inform the veteran of any issue with
respect to which further action is
required to perfect an appeal. The
veteran and his representative should be
provided an opportunity to respond.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. By
this REMAND, the Board intimates no opinion as to any final
outcome warranted. No action is required of the veteran
until he is otherwise notified by the RO.
SHANE A. DURKIN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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